The new Environmental Impact Assessment (EIA) Regulations were laid before Parliament yesterday following a period of consultation by the Department for Communities and Local Government. The new 2017 EIA Regulations transpose the European Directive (2014/52/EU) as amended. Member States are required to transpose the Directive into domestic legislation by 16th May 2017.
What do the changes mean for developers?
What can be done now and how will the proposed changes affect proposals in the future?
Let’s recap by looking at the main changes proposed to the current EIA Regulations
There will be a period of transition following the publication of the 2017 EIA Regulations and it is worth noting that the existing 2011 EIA Regulations will still apply to any project that has already commenced by way of a request for a Screening or Scoping Opinion or through the submission of an Environmental Statement. For example, there will be no need to re-screen a project where a request for a Screening Opinion has been made prior to the new Regulations coming into force. If the Screening Opinion decides that an EIA is required then the 2011 EIA Regulations will still apply. Similarly, if an Applicant seeks a Scoping Opinion or submits an Environmental Statement before the new Regulations come into force then the 2011 EIA Regulations will apply. However, the new 2017 EIA Regulations will apply to all requests for a Screening Opinion or Scoping Opinion together with their associated Environmental Statements on or after the publication date.
The main changes proposed to the EIA Regulations which developers should therefore be aware of prior to their implementation include:-
- Changes to Screening Although there are no proposed changes to the Schedule 2 screening thresholds or criteria, the draft 2017 EIA Regulations require an Applicant to provide more information in the request for a Screening Opinion to determine the likely significant effects of a project. This will undoubtedly make the screening process more comprehensive with the requirement for more up-front work. In addition, a developer “may provide” details of proposed mitigation, which may avoid or reduce the significance of the identified effect. Essentially, this aims to provide the competent authority with enough information to make its Screening Opinion and, hopefully, discount the requirement for an EIA. This will generally mean that technical assessments together with identified mitigation measures should support EIA Screening Opinion requests submitted to the competent authority. There will also be a requirement to ensure that in circumstances where mitigation measures are required to reduce the significance of effect and thereby “screen out” developments from requiring EIA, these are carried through to determination of an application to avoid the prospect of legal challenge. That said, it is already current best practice to provide the competent authority with enough information to be able to make a decision. Indeed, another proposed change is that the competent authority must state the “main reasons” for its decision, including, if the determination is that an assessment is not required, any mitigation measures required to avoid or prevent identified significant effects. In all cases, it will be necessary to ensure that any Screening Opinion issued is fully justified and the main reasons for the decision are clear and based on a robust request.
- Changes to Scoping The draft 2017 EIA Regulations set out a requirement for Environmental Statements to be ‘based on’ a Scoping Opinion, where one is issued, so far as the proposed development remains materially the same as the proposed development which was subject to that Opinion or Direction. Therefore, some scheme changes are permissible after the scoping exercise has been undertaken. However, where changes are material, then the scoping exercise may have to be revisited prior to the submission of an application.
- Changes to the Content of Environmental Statements There are proposed changes to the list of environmental factors to be considered as part of the environmental impact assessment process, to now include, for example, human health and land. This could essentially increase the scope of Environmental Statements, although the focus should be on assessing those effects which are likely to be significant only. There is a general lack of industry guidance on the methodology to be adopted in assessing some of these new EIA topics. The focus should be on agreeing the approach early with the competent authority as part of the Scoping process.
- Requirement for Monitoring There is also a proposed requirement to include monitoring measures for significant adverse environmental effects, where appropriate and which are proportionate to the nature, location and size of the project. In practice, it is not anticipated that this will have a major impact, as Planning Conditions and Legal Agreements are already frequently used as a means of monitoring identified effects and to keep mitigation measures up-to-date.
- Competent Experts The draft 2017 EIA Regulations state that an Environment Statement must “be prepared by persons who in the opinion of the relevant authority or the Secretary of State, as appropriate, have sufficient expertise to ensure the completeness and quality of the statement.” The consultation paper explains that this will be supported by a statement within the Environmental Statement setting out how this requirement has been met.
HOW’s Environmental Planning Team is an integral part of its planning advisory service and each team member holds a Master’s Degree in EIA and is a member of the Institute of Environmental Management & Assessment (IEMA).
What can be done before the May deadline?
As noted above, there are transitional arrangements in place to deal with the new Regulations coming into force next month. For those projects that have commenced prior to the publication of the 2017 EIA Regulations, either by way of a request for a Screening or Scoping Opinion or through the submission of an Environmental Statement, the 2011 EIA Regulations will continue to apply. However, if a Screening or Scoping Opinion is sought on or after the publication of the new Regulations, or an Environmental Statement is submitted with an application, then the new 2017 EIA Regulations will apply to that project.
In light of these transitional arrangements, developers may want to act now and submit requests for Screening and/or Scoping Opinions and officially commence a project to avoid being caught by the new 2017 EIA Regulations. It should be made clear to Local Authorities when submitting such requests that the project will be subject to the 2011 EIA Regulations.
Look out for HOW’s KnowHOW on the updated 2017 EIA Regulations once published.